State v Rokotuiwai - ruling on voir dire [1996] FJHC 159; Hac0009r.95s (21 November 1996)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 9 OF 1995

STATE

v

WAISALE ROKOTUIWAI

MURDER: Contrary to Section 199 of the Penal Code, Cap. 17

Mr. J. Naigulevu with Ms Rachel Olutimayin for the State
Dr. J. Cameron for the Accused

RULING

In this trial within a trial, the defence challenges the admissibility of the cautioned interview of the accused of 17th and 18th May 1995 on a number of grounds which appear later in this Ruling.

The prosecution called three witnesses to testify on its behalf. They are EMOSI VUNISA (PWI) an Assistant Superintendent of Police of 28 years' experience in the Police Force, Detective Sergeant ERONI GADOLO (PW2) of 20 years' experience and Det. Corporal AMINIASI TORA (PW3) of 6 years' experience.

At the close of the prosecution case in the trial within a trial the accused neither testified nor called any witness.

The prosecution witnesses were cross-examined at length.

I might mention at this stage that before the trial within a trial began it was the understanding by both counsel that challenge to the admissibility of the cautioned interview was confined mainly to the allegation that there was a breach of Judges Rules, namely, principle (d) of the Preamble which provides:

(d) That when a police officer who is making inquiries of any person for an offence has enough evidence to prefer a charge against that person for the offence, he should without delay cause that person to be charged or informed that he may be prosecuted for the offence. (underlining mine for emphasis)

But during his submission the learned defence counsel told the Court, when asked, that he is challenging all confessionary statements in the cautioned interview in that they were unfairly obtained and therefore they are not admissible in evidence. He also submitted that there have been breaches of the Judges Rules in not only one but on a number of aspects and hence the interview is not admissible particularly because he submits that those Rules have the force of law in Fiji in view of the provision in the Constitution under s.6. He further stated there was "oppression" in the obtaining of the statements from the accused.

Because of the learned defence counsel expanding his grounds of objection challenging the admissibility of the statement in evidence, the learned State Counsel complained before he replied to Dr. Cameron's submission that he has been taken completely by surprise by his new grounds and wanted further time to reply which the Court acceded to in the interests of justice. Mr. Naigulevu replied to all of his grounds of objection yesterday morning.

As I understood the learned defence counsel, the grounds of objecting to the admissibility of the statement are as follows:-

(a) Breach of the provision of the Judges Rules.

(b) Oppression

(c) Statement was unfairly obtained.

My function in this trial within a trial is only to decide on the admissibility of the challenged statements in the interview of the accused.

Dr. Cameron for the accused in a very lengthy submission stated that the interview statement should be excluded from evidence in toto as there is no question of admitting a portion and rejecting the rest on the grounds briefly, that there have been breaches of Judges Rules which in the context of Fiji have the force of law and are not of administrative nature, and the conduct of police officers were "oppressive" and "illegal", "cumulatively" oppressive and unfair and confession involved grounds of oppression. He said that even if admissible the Court could still exclude it in its discretion as being manifestly unfair and the second part of the interview as being of no probative value. He said finally that the State has not met the onus of proof.

The prosecution on the other hand submits that the Police did not act unfairly when they did not complete the interview of the accused on 17 May 1995. Mr. Naigulevu said that when PWI, the investigating officer, decided to suspend the interview until the receipt of the post mortem result it was most sensible and prudent in the circumstances in an incident which involved the death of the victim.

Mr. Naigulevu submitted that in accordance with police procedures the accused was charged only after the cause of death was known, for in the opinion of PWI he may have died "for other reasons". As stated before, he said, that police were not investigating a complaint of assault and that it would have been time-wasting, inconvenient, burdensome, and unfair and potentially oppressive to the accused if he was again brought to the station after lesser charges had been preferred the day before. He submitted that in the circumstances the delay was not unreasonable.

The prosecution evidence also is that before the post mortem result was known there was not enough evidence to charge the accused with the offence of murder or manslaughter. Hence Mr. Naigulevu submits that there was no breach of the Judges Rules and that the last 6 questions after receipt of the result were intended only to ascertain matters pertaining to the post mortem and to conclude the interview.

Mr. Naigulevu submits that the interview statement to PW2 was given voluntarily and in the circumstances it was fair to the accused, and the prosecution has discharged the burden of proof beyond reasonable doubt. Therefore, he says that the statement ought not to be excluded.

I have given careful consideration to all the evidence adduced and to the lengthy submissions by both counsel.

There cannot be any dispute that the Police were conducting a homicide/murder investigation. It was not an investigation into an ordinary assault or even one of grievous bodily harm but one where the victim met his death in the circumstances alleged.

The interview started at 5.00 p.m. on 17th May 1995 and was suspended at 11.15 p.m. to await the pathologist's findings. The post mortem was carried out at 1.00 a.m. on 18th May 1995.

The accused was locked in the cell for his own safety because of the alleged nature of the offence and because of alleged threats from sources which were not disclosed to court under what the witnesses said was "public interest immunity".

The accused was in the cell until 1.30 p.m. when the interview recommenced and that was when the Police Officers returned to Nausori Police Station with the pathologist's findings that the cause of victim's death was brain haemorrhage.

There is no complaint that all the time that the accused was with Police he was not provided with meals and refreshment.

The learned defence counsel said that he does not allege that there was any force or threat used, or any assault on the accused during the interview.

In the Privy Council case of WONG KAM-MING v THE QUEEN (1982) A.C. 247 at 261 in the judgment of LORD HAILSHAM of MARYLEBONE; on the basic control over admissibility of statement, it is stated:

"The basic control over admissibility of statement are found in the evidential rule that an admission must be voluntary i.e. not obtained through violence, fear or prejudice, oppression, threats and promises or other improper inducements. See decision of LORD SUMNER in IBRAHIM v. R [1914] UKPC 16; (1914-15) AER 874 at 877. It is to the evidence that the court must turn for an answer to the voluntariness of the confessions."

(underlining mine for emphasis)

There are a number of other cases to which Mr. Naigulevu referred the court to, on the principles to be followed and the tests to be applied in the consideration by the court before a statement which is challenged is admitted in evidence. These cases are IBRAHIM v KING (1974) AC 574, THE DIRECTOR OF PUBLIC PROSECUTIONS v PIN LIN (1976) A.C. 574, R v PRAGER (1972) 58 Cr. App. R. 151, R v. SANG [1979] UKHL 3; (1980) A.C. 402 and SHIU CHARAN v R (F.C.A., Crim. App. 46/83). In SHIU CHARAN (supra) it is stated:

"First, it must be established affirmatively by the Crown beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as the use of force, threats or prejudice or inducement by offer of some advantage - what has been picturesquely described as "the flattery of hope or the tyranny of fear." Ibrahim v R (1914) AC 599. DPP v Pin Lin (1976) AC 574. Secondly even if such voluntariness is established there is also need to consider whether the more general ground of unfairness exists in the way in which the police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. Regina v Sang [1979] UKHL 3; (1980) AC 402, 436 @ c - E." (underlining mine for emphasis)

Further in PIN LIN (supra) at p.182 the test to be applied is succinctly stated as follows:

"I cannot myself help regarding the issue as basically one of fact. The trial judge should approach his task by applying the test enunciated by Lord Sumner in a common sense way to all the facts in the case in their context much as a jury would approach it if the task had fallen to them. In the light of all the facts in their context, he should ask himself this question, and no other: 'Have the prosecution proved that the contested statement was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage excited or held out by a person in authority or (where it is relevant, as is not the case on appeal here) by oppression?'" (underlining mine for emphasis)

In the Preamble to the Judges Rules is set out the legal test for admissibility in evidence of an alleged confession as follows:-

"That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression."

(emphasis mine)

It is for the prosecution to prove beyond reasonable doubt that the admissions are voluntary. I remind myself of that. The voluntary nature of the admissions have to be in the sense which have been repeatedly stated in the abovementioned passages. It is essentially a question of fact.

What have we in this case? Subject to what I say hereafter in regard to questions 100 to 105, I find that the answers to questions put to the accused during the interview, on the evidence before me, were made by the accused of his own free will, that is, voluntarily in the sense referred to in the Preamble to the Judges Rules. In arriving at this conclusion I have carefully considered the evidence of the prosecution witnesses. There was no evidence from the defence to contradict or challenge that evidence for the accused decided not to testify except that Dr. Cameron made his own comments in his submissions.

I have carefully considered all the circumstances leading up to and surrounding the making of the statements in the interview as stated in the evidence before me.

The accused has not testified and therefore does not say that he did not make the statements. His counsel says that there is no allegation of force; there is no allegation of any threat having been used in obtaining the statement. The accused does not say that the statements were not voluntarily made. When asked by Court, Dr. Cameron said that it is for prosecution to prove voluntariness and he "does not have to do anything". In this case again, subject to what I say hereafter about questions 100 to 105, on the evidence before me I find that the statements were made voluntarily and that is, as the authorities emphasize, is the essential element in considering the admissibility of statements allegedly made by the accused.

I accept the testimony of the three police officers in the trial within a trial in regard to the material particulars. The PW3 located the accused and took him to the Police Station and he went there willingly. We have heard how he was interviewed by PW2 and how the statement was recorded and finally read back to the accused who even after having been given the opportunity to alter or add to it did not wish to do so.

One of the main grounds of objection to the admissibility of the statement has been and on which the trial within a trial commenced was that there have been numerous breaches of the provisions of the Judges Rules.

The main objection was that PW2 should have stopped at Q.74 in his interview because it is asserted by Dr. Cameron that he had at that point in time enough evidence to charge the accused for an offence although it may be for assault or grievous bodily harm and to be brought back for a more serious charge if it became necessary.

Although not raised initially when the trial within a trial commenced, he in his submission alleged that were other breaches of the Rules such as that the interview should have been in a narrative form and not in the form of question and answer and the administering of caution every time the interview continued after suspension although in this case the PW2 said that he did administer but forgot to write this fact down in the statement.

Dr. Cameron submits that although the confession may prove to be "voluntary", the judge nevertheless has a discretion to reject it but only if it was obtained by improper or unfair means, or its prejudicial effect outweighs its probative value (R v SANG (1979) 69 Cr. App. R.282). He said that the most usual ground for inviting the exercise of this discretion is that there has been a breach of the Judges Rules. He said that in principle the Judges Rules are only administrative guides to police officers. But here he says that as well as being a breach of the Rules the breach is also a breach of the Fiji Constitution, and in his own words "it is a breach of an absolute legal right, and the question of whether it induced the accused to make a confession which he would not otherwise have made is not relevant, and the confession should be excluded as a matter of course."

Dr. Cameron submitted that as administrative direction, the Judges Rules are subject to related constitutional and legal requirements, in the present instance the Fiji Constitution and the Criminal Procedure Code, as well as the common law principles set out in the Preamble to the Judges Rules.

I have considered Dr. Cameron's argument in regard to the effect of the alleged breaches of the Judges Rules.

It is my view that all of the provisions of the Judges Rules are applicable to Fiji without any modification or qualification despite the constitutional and the Criminal Procedure Code provisions to which Dr. Cameron adverted to in support of his argument. These Rules are not sacrosanct. I have no doubt whatsoever that these Rules do not have the force of law as has been made abundantly clear by the Court of Appeal in R v PRAGER (1972) 1 AER 1114 which is and should be followed in Fiji. The headnote reads:

"The Judges' Rules 1964 are not rules of law and their non-observance will not necessarily lead to a confession being excluded from evidence, unless it is shown that the confession was not made voluntarily. Accordingly where it is alleged that a confession has been obtained in the course of questioning which was not introduced by a caution in accordance with r2b of the 1964 rules it is open to the trial judge to admit the confession on the basis that it was made voluntarily without ruling on the question whether it was obtained in breach of the rules (see p 1118 e and j to p 1119 a and p 1120 b, post).

In order to establish that a confession is not voluntary in that it was obtained by 'oppression', it must be shown that it was obtained in circumstances which tended to sap, and did sap, the free will of the suspect. 'Oppressive questioning' may be described as questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have remained silent (see p 1119 c to f, post)."

A breach of Judges Rules does not necessarily mean that an admission would be rejected. It is within the discretion of the Court to so reject if it considers that the manner in which the admission was obtained was "improper" and "unfair". There have been many judicial pronouncements on what is improper or unfair. These expressions have to be considered by looking at the facts of the case bearing in mind when does a person feel himself in custody, what is voluntary, what are the influences that excite his fears and hopes by reference to the station in life of the accused.

Having supported the view that Judges Rules do not have the force of law, I have considered counsels' submissions in regard to other alleged breaches of the Rules.

On the evidence before me of PW2 I accept his testimony that he did not have "enough evidence" to prefer a charge for the offence for which investigation was being conducted and it behoved him in his opinion to await the outcome of the Post Mortem examination. Hence he suspended the interview. I see nothing wrong in the procedure adopted by PW2 in this regard. This does not, in my view, in any way offend the Judges Rules in (d) to the Preamble. In this regard I have considered R v HOLMES, ex parte SHERMAN and Another (1981) 2 AER 612 which was referred to by Dr. Cameron on the aspects of "enough evidence" and "delay". All I need say that on the facts and circumstances of this case there was not "enough evidence" and there was no delay of a nature so as to be fatal in bringing the accused before the Magistrate's Court. Also, as stated by Mr. Naigulevu, the facts in HOLMES (supra) can be distinguished from the facts of this case.

I also reject allegations of other breaches of the Rules such as: (a) not recording of entry and exits of all persons present during the interview. I find there were sufficient entries in this case and there is no evidence to suggest that if there was any omission in this regard it caused any prejudice to the accused; (b) alleged breach of Rule 3 which prohibits except in exceptional circumstances the asking of question after an accused has been charged or informed that he may be prosecuted. This prohibition Dr. Cameron says extends to the asking of questions after the point at which there was sufficient evidence to charge him. Here I have already accepted that there was not "enough evidence" at Q.74 and hence there is no breach of Rule 3; (c) I see no merit in the defence submission that the interview should not have been in question and answer form and instead should have been just "written statements". This has been the practice in Fiji for ages and I see nothing wrong with it to permit of exclusion of the interview altogether on this ground.

I have already stated above the principles applicable to the admissibility of statements of a confessionary nature. The thread that runs through the passages that I have quoted above on this aspect is that statements have to be "voluntary" in the sense stated therein.

This I find is a straightforward case of the accused having been brought to the Nausori Police Station as a suspect by PW3 upon instructions from his superior officer and handed over to PW2 for questioning.

The PW2 commenced his interview of the accused after caution in the form of question and answer with a couple of suspension of the interview. The accused had always been adequately provided with meals and refreshment including a few bowls of yagona. The interview was not a continuous one for four hours as suggested by Dr. Cameron giving rise to the impression that it was obtained by oppression. Again, subject to what I say hereafter about Questions 100 to 105, I find that there is nothing in the manner in which the statement was obtained to suggest that it was obtained through unfair means or in an oppressive manner.

Up to question 99 when at 11.15 p.m. the interview was suspended to await the result of the post mortem which was to be done the next day i.e. 18 May 1995 there was nothing wrong in the manner in which the statement was obtained.

But when the interview re-commenced at 1330 hours on 18 May 1995 no caution was administered by PW2 as required under the Judges Rules. It was so crucial that it should have been done. Not having done that the 6 questions that were put to the accused in the end were clearly improper and unfair and their prejudicial effect far outweigh their probative value. To decide whether it is improper or unfair the yardstick is to look at the station in life of the accused. I state below what GOVIND J (a former Judge) said in his Ruling on 10 March 1987 in REGINA v AMI CHAND & ANOTHER (Crim. Case No. 3/86 photocopy judgment p.10) on this aspect:

"I am of the view that these expressions must be interpreted not in the context of a sophisticated London dweller, but in the context of the simple rural people that this Court is dealing with. When does a person feel himself in custody, what is voluntary, what are the influences that excite his fears and hopes, are questions that must be answered by reference not to the man on the Clampham Omnibus, and not even by reference to the passenger on the "Tabua" class of Air Pacific, but by reference to the passengers on the Suva-Raiwaqa bus."

On the allegation of obtaining of statement unfairly and by oppression the following extract from ARCHBOLD 39th Edition p.751 para 1380 on the import behind the word "oppression" is pertinent and I emphasise the last eight lines on what I have to say about the obtaining of the statement in those 6 questions as having been obtained in an improper and unfair manner:

"The word "oppression" was considered by Sachs J. in R. v. Priestley (1965) 51 Cr. App. R. 1 "... this word ... imports something which tends to sap and has sapped that free will which must exist before a confession is voluntary ... whether or not there is oppression in an individual case depends upon many elements ... they include such things as the length of time intervening between periods of questioning, whether the accused person had been given proper refreshment or not and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or an old man, or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is of tough character and an experienced man of the world." In R. v. Prager (1972) 56 Cr. App. R. 151, the Court of Appeal adopted and applied not only this definition but also the following ex cathedra statement of Lord MacDermott: "oppressive questioning is questioning which by its nature, duration or other attendant circumstances (including the fact of custody excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent."

I emphasize that it was highly desirable and important that caution ought to have been administered when the interview recommenced with question 100. It is not good enough for PW2 to say that he forgot to record that aspect in the interview statement. It was only fair and proper in the interest of the accused in the circumstances of this case, and the accused also expected, that caution should again have been administered as required by the Judges Rules.

I agree with Dr. Cameron that the effect of the first caution had worn off and this is a ground for the confession to be rejected. (R v. KNIGHT 20 COX 711 - PHIPSON ON EVIDENCE para 22-26).

For these reasons in so far as the said 6 questions are concerned namely, questions and answers 100 to 105, I will disallow those 6 questions obtained after the interview recommenced on 18 May after the post mortem result was known. This means that anything said by the accused in those 6 questions until final termination of the interview should not be introduced in evidence. But questions 1 to 99 are admissible in evidence. The disallowing in part was done by GOVIND J in AMI CHAND (supra) and I do the same in this case.

In the outcome I am satisfied that as far as questions 1 to 99 are concerned the prosecution has proved beyond reasonable doubt that the accused, after caution was administered to him, understood the questions put to him during the interview and was able to answer them freely and voluntarily and that the answers were properly recorded by PW2 and duly witnessed. The accused had also at the end of the interview acknowledged that "the statement I gave are all true and I gave them in my own free will". The accused has not challenged the statement in the interview and he has not complained about the manner in which it was obtained.

The accused came willingly to the Nausori Police Station and went through the interview without any complaint to anyone about the length of the interview and the number of hours he was at the Station. Bearing in mind the circumstances in which the victim met his death, surely the accused could not expect to be released to go home and rest before the outcome of the cause of death was known after the post mortem. I do not find that there was anything wrong in the circumstances of this case for the accused to be locked in cell awaiting the outcome of the post mortem result. One has to look at the facts of the case, the circumstances surrounding what took place after the accused's arrival at the Police Station and how he was handled by the Police.

Having heard the evidence I find that the accused was fairly treated by the police up to the time when the interview was suspended awaiting the outcome of the post mortem and that he was given proper break and meals and refreshment.

I am completely satisfied that the statement taken from the accused being questions and answer No. 1 to No. 99 are admissible in evidence. They were properly taken by PW2 and it was freely and voluntarily given by the accused, without force, duress, threats or violence being used and no inducement offered to persuade the accused to make the statement.

I am satisfied that there is no substance in the various objections to the admissibility of the statement made by Dr. Cameron on behalf of the accused except what I have said regarding the 6 questions in the end.

In these circumstances the cautioned interview statement obtained from the accused on 17 and 18 May, 1995 will therefore be admitted in evidence with the exclusion of questions and answers No. 100 to 105 which are inadmissible in the exercise of the Court's discretion as being "improper" and "unfair".

(D. Pathik)
Judge

At Suva
21 November 1996

HAC0009R.95S